This was an action against a telephone company by one of its patrons to recover penalties at the rate of $100 per day for sixty-three days for alleged discrimination against the plaintiff, the right of recovery being grounded upon a statute of Arkansas, Kirby's Digest, 7948, reading as follows:

'Every telephone company doing business in this state and engaged in a general telephone business shall supply all applicants for telephone connection and facilities without discrimination or partiality; provided, such applicants comply or offer to comply with the reasonable regulations of the company, and no such company shall impose any condition or restriction upon any such applicant that are not imposed impartially upon all persons or companies in like situations; nor shall such company discriminate against any individual or company engaged in lawful business, by requiring as condition for furnishing such facilities that they shall not be used in the business of the applicant, or otherwise, under penalty of $100 for each day such company continues such discrimination and refuses such facilities after compliance or offer to comply with the reasonable regulations and time to furnish the same has elapsed, to be recovered by the applicant whose application is so neglected or refused.'
[238 U.S. 482, 486]
For several years the company had been conducting a general telephone exchange at Little Rock, Arkansas, with over 5,000 patrons, among them being the plaintiff. One of its established regulations was to the effect that it would not furnish telephone service to any patron in arrears for past service, and would not accord to a patron so in arrears the discount usually allowed for paying in advance of a designated time.

The customary monthly rate was $2 during the first part of the period in question, and thereafter $2.75, with a deduction of 50 cents if payment was made before the 15th of the month.

The discrimination charged by the plaintiff consisted (a) in arbitrarily refusing for forty days to permit her to use the telephone in her residence when she had made prompt payment therefor at the customary monthly rate, and had fully complied with all existing rules, notwithstanding other patrons similarly situated were permitted to use the telephones in their residences during that period; and (b) in requiring her to pay at the rate of $2.75 per month for the period covering the next twenty-three days when other patrons similarly situated were required to pay only $2.25 per month for the same period. In its answer the company denied the plaintiff's allegations of payment and discrimination, as also her compliance with existing rules, and relied upon the regulation before mentioned as justifying the company's action in denying her the use of the telephone during the forty days, and in requiring her to pay the full rate of $2.75 for the month covering the next twenty-three days. In that connection it was alleged in the answer that the regulation was adopted in good faith several years before, and had been uniformly and impartially enforced; that at the times when the plaintiff's telephone was disconnected, and when she was refused the discount of 50 cents, she was indebted to the company in the sum of $4 for the service for two months preceding; that the company's acts were in entire accord with the regulations
[238 U.S. 482, 487]
and with timely notices theretofore given to the plaintiff, and that the statute, if held to authorize or require the infliction of the designated penalties by reason of what was done in impartially enforcing the regulation, would be purely arbitrary and would result in depriving the company of its property without due process of law, contrary to the 14th Amendment to the Constitution of the United States.

At the trial the plaintiff produced evidence tending to establish the charges in in her complaint, and when the company was introducing its evidence it offered to prove that when the plaintiff's telephone was disconnected and when she was refused the discount of 50 cents she had failed and refused to pay her telephone rental for two months preceding, although she frequently had been requested to pay it, and knew the telephone would be disconnected if payment was not made; that the regulation before named had been in force for several years and had been applied universally against all delinquent patrons without partiality or discrimination, and that the plaintiff was denied the use of the telephone and refused the discount only because she was delinquent at the time. This evidence was rejected, and in its charge to the jury the court, at the plaintiff's request, said: 'Under the law, the defendant should not refuse to serve the plaintiff because she had not paid a debt contracted for services rendered in the past, and if you find that the defendant did refuse to render her services for that reason, your verdict should be for the plaintiff.' The defendant asked the court to say to the jury: 'If you find from the evidence that the defendant enforced against plaintiff the same rule or regulation that it enforced against all others in like situation with the plaintiff, your verdict will be for the defendant,' and this request was refused. The trial resulted in a verdict and judgment for the plaintiff for the penalties claimed, amounting to $6,300, and the judgment was af-
[238 U.S. 482, 488]
firmed by the supreme court of the state. 102 Ark. 547, 144 S. W. 925. At a former trial the defendant had prevailed, but that judgment was reversed and a new trial directed, the supreme court saying on that occasion (94 Ark. 533, 537; 30 L.R.A.(N.S.) 1027, 127 S. W. 963): 'A telephone company, being a public servant, cannot refuse to serve any one of the public in that capacity in which it has undertaken to serve the public when such one offers to pay its rates and comply with its reasonable rules and regulations. It cannot refuse to serve him until he pays a debt contracted for services rendered in the past. For the present services it has a right to demand no more than the rate of charge fixed for such services. It transcended its duty to the public when it demanded more.' Of course what was then said led to the rulings just stated upon the second trial. In affirming the second judgment the supreme court adhered to its prior decision, pronounced the regulation unreasonable, and held that its enforcement against the plaintiff was a discrimination against her within the meaning of the statute, and subjected the company to the penalties therein prescribed.

It was not doubted by the state court, but, on the contrary, was fully recognized, that the telephone company was entitled to adopt reasonable regulations respecting the conduct of its business and the terms upon which it would serve its patrons, and could enforce such regulations against any patron refusing or failing to company therewith by suspending or discontinuing the service to him during the continuance of his refusal or failure without being chargeable with discrimination or incurring any liability under the statute. Thus the questions for decision arising out of the rulings at the trial were whether the regulation dealing with patrons in arrear with their rental was reasonable, and whether its impartial enforcement in the circumstances of this case could be made the occasion, consistently with the due process of law clause in the 14th Amendment, for inflicting upon the company pen-
[238 U.S. 482, 489]
alties aggregating $6,300. As before indicated, the first question was answered in the negative and the second in the affirmative.

Of course, it is not open to us to revise the construction placed upon the statute by the state court, but it is open to us to determine whether the application made of the statute in this instance was so arbitrary as to contravene the fundamental principles of justice which the constitutional guaranty of due process of law is intended to preserve. What, then, are the circumstances in the light of which this question must be determined?

Regulations like that which the telephone company applied to the plaintiff were not declared unreasonable by the statute. It left that matter entirely open and to be determined according to general principles of law. The state court did not hold otherwise. The regulation, according to the rejected proof, was adopted in good faith, had been uniformly and impartially enforced for many years, and was impartially applied in this instance. There had been no decision in the state holding or indicating that it was unreasonable. Like regulations often had been pronounced reasonable and valid in other jurisdictions1 and while some differences of opinion upon the subject were disclosed in reported decisions, the weight of authority was on that side. It also was strongly supported in reason, for not only are telephone rates fixed and regulated in the expectation that they will be paid, but the
[238 U.S. 482, 490]
company's ability properly to serve the public largely depends upon their prompt payment. They usually are only a few dollars per month, and the expense incident to collecting them by legal process would be almost prohibitive. It uniformly is held that a regulation requiring payment in advance or a fair deposit to secure payment it reasonable, and this is recognized in the brief for the plaintiff where it is said that to protect themselves against loss telephone companies 'can demand payment in advance.' If they may do this, it is difficult to perceive why the more lenient regulation in question was not reasonable.

If it be assumed that the state legislature could have declared such a regulation unreasonable, the fact remains that it did not do so, but left the matter where the company was well justified in regarding the regulation as reasonable and in acting on that belief. And if it be assumed that the company should have known that the supreme court of the state, in the exercise of its judicial power, might hold the regulation unreasonable, even though the prevailing view elsewhere was otherwise, the question remains whether, in the circumstances, penalties aggregating $6, 300 could be imposed without departing from the fundamental principles of justice embraced in the recognized conception of due process of law. In our opinion the question must be answered in the negative. There was no intentional wrongdoing, no departure from any prescribed or known standard of action, and no reckless conduct. Some regulation establishing a mode of inducing prompt payment of the monthly rentals was necessary. It is not as if the company had been free to act or not, as it chose. It was engaged in a public service which could not be neglected. The protection of its own revenues and justice to its paying patrons required that something be done. It acted by adopting the regulation and then impartially enforcing it. There was no mode of
[238 U.S. 482, 491]
judicially testing the regulation's reasonableness in advance of acting under it, and, as we have seen, it had the support of repeated adjudications in other jurisdictions. In these circumstances to inflict upon the company penalties aggregating $6,300 was so plainly arbitrary and oppressive as to be nothing short of a taking of its property without due process of law. Missouri P. R. Co. v. Tucker,
230
U.S. 340, 351
, 57 S. L. ed. 1507, 1511, 33 Sup. Ct. Rep. 961, and cases cited; Wadley Southern R. Co. v. Georgia,
235 U.S. 651
, 661-666, 59 L. ed. --, P. U. R. 1915A, 106, 35 Sup. Ct. Rep. 214; Vaught v. East Tennessee Teleph. Co., 123 Tenn. 318, 328, 31 L.R.A.(N.S.) 315, 130 S. W. 1050, Ann. Cas. 1912C, 132.

It follows that the rulings of the trial court, as sustained by the Supreme Court of the state, tended to deprive the defendant of a right secured and protected by the 14th Amendment.